On research, we find that Article 15 Clause (3), (4) and (5) itself stands as an exception to Article 15 Clause (1) and (2). Article 15 Clause (3), (4) and (5) states that the legislature is free to formulate special provisions:
- For women and children,
- For the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes,
- Make provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.
Though being the exception to the legislation that forbids discrimination on grounds of sex and caste, this does not come under discrimination. Rather, the term ‘PROTECTIVE DISCRIMINATION’ (also known as Positive Discrimination) is used by the legislators to justify reservation and is defined as the policy of providing an equal platform to the underprivileged and the suppressed classes and to lift their status in the society. This system of reservation works on the principles of intelligible differentia (difference capable of being understood).
Once we know that reservation arises due to the presence of clause (3), (4) and(5). Let us now try to examine the clauses one by one.
Clause (3) of Article 15 of the Indian constitution speaks about special provisions for women and children in order to protect them from the clutches of formal equality.
Thought of this legislation to be carte blanche (complete freedom to act as one wishes) to impose differential benefits and ostensibly to the advantage of women at the cost of burdening men may ponder in your mind. But it is justified as it compensates for early injustice met by women and children at the hands of a male-dominated society. Right to free and compulsory education for children under the age of 14 years, section 56 of CPC, the Maternity Benefit (Amendment) Act 2017, etc. are some of the best examples of such provisions.
In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, U.P. govt made provision providing reservation BTC training programme as follows:
- 50% of the candidates to be selected shall be from Science stream,
- 50% from the Arts stream,
- further 50% would be female candidates,
- And the other 50% would be male candidates.
The contentions raised were that the reservation format formulated was arbitrary and violative of Articles 15. The court held that the reservation format introduced was not warranted by the provisions of the Indian constitution, being over and above the constitutional reservations in favour of backward classes.
Whereas In Union of India v. K.P. Prabhakaran, (1997), the railway administration took the decision to appoint Enquiry cum reservation clerks in four metropolitan cities i.e. Mumbai, Delhi, Kolkata, and Chennai. The decision stated that the post would be held by women only. The court rejected the contention of the government urging that this provision is protected under Article 15(3). It said that Article 15(3) cannot be read as the provision or as an exception to what is guaranteed under Article 16 (1)(2).
These cases clearly explain the applicability of the phrase ‘Special provisions for women and children’ in matters of the reservation to education and employability. But what if there are laws which differentiate or prefer women over men, can it be called discrimination.
In cases of Girdhar v. State, AIR 1953 MB 147 the petitioner was convicted under Section 342 and 354 of the Indian Penal Code. The petitioner claimed that as there are no provisions relating to assault against men with the intention to outrage his modesty, hence providing such laws for women is discriminatory. Section 354 is contrary to Article 15(1). The petition was dismissed stating the law to be in consonance with Article 15(3).
In Choki v. the State of Rajasthan, AIR 1957 Raj 10, Mt. Choki and her husband conspired and murdered their child, the application of bail was presented on the plea that she is an imprisoned woman, with no one to look after her young son. The judge rejected the application saying that there were no extenuating circumstances and the Constitution has no provisions under which leniency could be shown to women on account of her sex. The same was challenged before the Supreme Court.
It was held that Article 15(3) talks about special provisions for women and children. And under the light of this provision, Mt. Choki was granted bail as she was a woman and there is a young child dependent on her, thus it becomes necessary for the state to protect the rights of the child.
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